Right of a convicted person to travel abroad :A detailed analysis
In the case of Hamida Habib Jeelani Alias Hamida Begum vs The Secretary To Government, Home Department, Government Of Andhra Pradesh And Anr 1996 CriLJ 1086 the Hyderabad High Court held that under Section 102 of the Criminal Procedure Code read with the provisions of Section 165 of the Criminal Procedure Code the police have the power to seize the passport of a person who is facing a criminal trial. The Hon’ble High court reasoned as follows:
A reading of sub-section (1) of Section 165, Cr.P.C. makes it abundantly clear that the investigating officer can seize any property, belonging to any person, believed by him to be necessary for the purpose of investigation into the commission of any offence. No doubt, the police officer seizing the property of any person has to record the grounds for doing so in writing and also follow the provisions laid down under Section 100, Cr.P.C. which apply to the general provisions as searches. Therefore, it follows that the police officer under the provisions of Section 165, Cr.P.C. has got the power to seize the passport if in his opinion it is necessary to control the movement of the person alleged to have committed an offence and to secure his/her presence whenever necessary for the purpose of investigation. Once a passport is seized during the course of investigation by a police officer, under sub-section (5) of Section 165, Cr.P.C. the police officer has to send the passport to the nearest Magistrate empowered to take cognizance of the offence and for impounding the same if necessary he has to intimate the passport authority through the concerned Magistrate.
However, this contention was not accepted by the Hon’ble Supreme Court, which in the case of Suresh Nanada Vs C.B.I 2008 AIR 1414 held that:
The Act (Passport Act) is a special Act relating to a matter of passport, whereas Section 104 of the Cr.P.C. authorizes the Court to impound document or thing produced before it. Where there is a special Act dealing with specific subject, resort should be had to that Act instead of general Act providing for the matter connected with the specific Act. As the Passports Act is a special act, the rule that ‘general provision should yield to the specific provision’ is to be applied. See : Damji Valaji Shah & another Vs. L.I.C. of India & others [AIR 1966 SC 135]; Gobind Sugar Mills Ltd. Vs. State of Bihar & others [1999(7) SCC 76]; and Belsund Sugar Co. Ltd. Vs. State of Bihar and others [AIR 1999 SC 3125].
The Act being a specific Act whereas Section 104 of Cr.P.C. is a general provision for impounding any document or thing, it shall prevail over that Section in the Cr.P.C. as regards the passport. Thus, by necessary implication, the power of Court to impound any document or thing produced before it would exclude passport.
The Hon’ble Supreme Court has further held that:
While the police may have power to seize a passport under Section 102 Cr.P.C. if it is permissible within the authority given under Section 102 of Cr.P.C., it does not have power to retain or impound the same, because that can only be done by the passport authority under Section 10(3) of the Passports Act. Hence, if the police seizes a passport (which it has power to do under Section 102 Cr.P.C.), thereafter the police must send it along with a letter to the passport authority clearly stating that the seized passport deserves to be impounded for one of the reasons mentioned in Section 10(3) of the Act. It is thereafter the passport authority to decide whether to impound the passport or not. Since impounding of a passport has civil consequences, the passport authority must give an opportunity of hearing to the person concerned before impounding his passport. It is well settled that any order which has civil consequences must be passed after giving opportunity of hearing to a party vide State of Orissa Vs. Binapani Dei [Air 1967 SC 1269].
In our opinion, even the Court cannot impound a passport. Though, no doubt, Section 104 Cr.P.C. states that the Court may, if it thinks fit, impound any document or thing produced before it, in our opinion, this provision will only enable the Court to impound any document or thing other than a passport. This is because impounding a passport is provided for in Section 10(3) of the Passports Act. The Passports Act is a special law while the Cr.P.C. is a general law. It is well settled that the special law prevails over the general law vide G.P. Singh's Principles of Statutory Interpretation (9th Edition pg. 133). This principle is expressed in the maxim Generalia specialibus non derogant. Hence, impounding of a passport cannot be done by the Court under Section 104 Cr.P.C. though it can impound any other document or thing.
Thus from the above it is established that the seizure and impounding of the passport has to be in accordance with the provisions of the Passport Act only.
With regards to rights of convicted persons, the Supreme Court in Sunil Batra Vs. Delhi Admn. AIR 1978 SC 1675 has categorically laid down that convicts are not by mere reason of the conviction denuded of all the fundamental rights which they otherwise possess. For example a man of profession who is convicted would stand stripped of his right to hold consultations while serving out his sentence; but the Constitution guarantees other freedoms like the right to acquire, hold and dispose of property for the exercise of which incarceration can be no impediment. Likewise even a convict is entitled to the precious right guaranteed by Art. 21 that he shall not be deprived of his life or personal liberty except according to the procedure established by law merely because a person is a convict or an under trial, he does not get denuded of all his fundamental rights.
Also, in respect of the right to travel abroad, a 5- Judge Bench of the Hon’ble Supreme Court in Satwant Singh Sawhney Vs. D. Ramarathnam, Asstt. Passport Officer (1967) 3 SCR 525 held that that 'personal liberty' within the meaning of Article 21 includes within its ambit the right to go abroad and consequently no person can be deprived of this right except according to procedure prescribed by law
Thereafter a 7-Judge Bench of the Hon’ble Supreme Court in Maneka Gandhi Vs. Union of India and another (1978) 1 SCC 248 held that:
It will be seen at once from the language of Article 21 that the protection it secures is a limited one. It safeguards the right to go abroad against executive interference which is not supported by law; and law here means 'enacted law' or 'State law', Vide A.K. Gopalan's case . Thus, no person can be deprived of his right to go abroad unless there is a law made by the State prescribing the procedure for so depriving him and the deprivation is effected strictly in accordance with such procedure. It was for this reason, in order to comply with the requirement of Article 21, that Parliament enacted the Passports Act, 1967 for regulating the right to go abroad. It is clear from the provisions of the Passports Act. 1967 that it lays down the circumstances under which a passport may be issued or refused or cancelled or impounded and also prescribes a procedure for doing so…..
Thus, a convicted person has all the rights as accruing to an ordinary citizen, except those specifically circumscribed by law as a consequence of his conviction. It further follows that once the sentence is suspended by the appellate court under Section 389 of the Criminal Procedure Code, 1973 the only restrictions that would apply on the liberty of a convicted person would be only those imposed upon him by the court granting his bail and those incorporated in his bail bond.
Therefore, it is clear that if the court has not imposed any restrictions upon a convicted person from going abroad, then the fundamental right of that person to go abroad cannot be curtailed by any authority except in accordance with procedure established by law i.e. only in accordance with the provisions of Section 10 (3)(d) and (h) of the Passports Act, 1967.
Section 10(3)(d) of the Passports Act, 1967 provides that the passport authority may impound or cause to be impounded or revoke a passport or travel document if the holder of the passport or travel document has, at any time after the issue of the passport or travel document, been convicted by a court in India for any offence involving moral turpitude and sentenced in respect thereof to imprisonment for not less than two years.
Similarly, Section 10(3)(h) of the said Act provides that the passport authority may impound or cause to be impounded or revoke a passport or travel document if it is brought to the notice of the passport authority that a warrant or summons for the appearance, or a warrant for the arrest, of the holder of the passport or travel document has been issued by a court under any law for the time being in force or if an order prohibiting the departure from India of the holder of the passport or other travel document has been made by any such court and the passport authority is satisfied that a warrant or summons has been so issued or an order has been so made.
An analysis of the aforesaid provisions of the Passports Act reveals that the said provisions are only directory in nature and not mandatory. This is apparent from the use of the word ‘may’. Therefore, it is not necessary for the passport Authority to impound/ revoke the passport in each case of conviction. Also, the Passports Act does not cast any obligation upon the court or the convicted passport holder to inform the passport authority about his conviction.
Thus, where no action is initiated by the passport authority for impounding the passport under Section 10(3)(d) or (h) and no condition is imposed by the bail bond, there can be no bar on a convicted person from going abroad.
With regards to the practical aspects of going abroad, usually at the airport a person has to deal with officers from the Customs Department and the Bureau of Immigration. Both these departments require the traveler going abroad to fill in forms prescribed by their respective departments. However, in both the said forms, no query is raised regarding the conviction history of the person concerned.
Section 14 of the Passports Act, deals with the powers of the above mentioned officers of the Customs Department and the Bureau of Immigration. It provides that any officer of customs empowered by a general or special order of the Central Government in this behalf and any officer of police or emigration officer not below the rank of a sub- inspector may search any place and seize any passport or travel document from any person against whom a reasonable suspicion exists that he has committed any offence punishable under section 12.
A bare perusal of the above provision shows that the officers mentioned there under are empowered to search and seize the passport or travel document from any person against whom a reasonable suspicion exists that he has committed any offence under Section 12 of the Passports Act, 1967. Thus, it is clear that the said power is available even to the officers mentioned there under only in respect of the offences under Section 12 of the Passports Act, 1967, but not other offences.
Further, Section 12 of the Passports Act, 1967 deals only with the offences relating to the passports and travel documents such as furnishing false information or altering the entries made in the passport or failure to produce the passport for inspection when called upon to do so by the prescribed authority and such other matters relating thereto. ( Norman Swaroop Issac vs State Bank Of India And Anr AIR 2007 AP 40) It does not deal with previous conviction of the passport holder.
Thus the Officers of Customs, Police and Bureau of immigration posted at the Airports do not have any powers to seize the passport of a convicted person going abroad. Nor can they impede his travel in any manner.
From the foregoing, it can be concluded that:
1) The seizure and impounding of the passport has to be in accordance with the provisions of the Passport Act only.
2) Neither the police nor the courts have power to impound the passport.
3) where no action is initiated by the passport authority for impounding the passport under Section 10(3)(d) or (h) and no condition is imposed by the bail bond, there can be no bar on a convicted person from going abroad and
4) The Officers of Customs, Police and Bureau of immigration posted at the Airports do not have any powers to seize the passport of a convicted person going abroad. Nor can they impede his travel in any manner.